Universities That Censor end up Paying in Court

John Carpay
Calgary lawyer and president of the Justice Centre for Constitutional Freedoms (www.JCCF.ca)

PhotoAlto/Odilon Dimier via Getty Images

University students walking on campus, rear view

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Some Canadian universities won't tolerate free expression on campus until they are sued into doing so.

Examples from the last several years show a disturbing trend. The University of Calgary found students guilty of non-academic misconduct for peacefully expressing controversial and unpopular opinion on campus, and abandoned that position only upon court order in Wilson v. University of Calgary. Mount Royal University apologized for the actions of its security guards, who had handcuffed, detained and confined a young man for distributing literature on campus that a security guard found "offensive," but only after the young man commenced a court action (now settled).

Another campus free speech claim, this time against the University of Victoria, is now before the B.C. Court of Appeal. The case arises out of UVic's censorship of a small pro-life campus club at the bidding of the student union. UVic's student union has a long track record of active hostility toward the pro-life club, Youth Protecting Youth (YPY).

In 2012, UVic implemented a new Outdoor Space Booking Policy, in which UVic agreed to refuse campus space bookings for campus club whose message was not approved by the student union. In 2013, UVic's administration granted YPY approval to conduct a small, peaceful demonstration on campus, involving students holding pro-life signs, handing out pamphlets, and engaging fellow students in conversation. The student union immediately complained to UVic, resulting in an eleventh-hour phone call to cancel the event. YPY protested this unfairness by proceeding with their event as planned and (previously) approved, and was then disciplined by UVic.

All this stemmed from complaints directed at YPY's opinions and message -- a message about "personhood" and the value our society should give to human life from conception to natural death. No matter how strongly people may differ, this is a serious question that has a right to be heard in the public square, including the university campus.

To defend free expression on campus, the B.C. Civil Liberties Association and YPY president Cam Cote took UVic to court. The Supreme Court of B.C. ruled that the Charter's free expression guarantee does not apply to public universities; UVic's suppression of free speech fell within its "autonomous operational decision-making."

The issue is now before the B.C. Court of Appeal and like the issue in previous court actions, asks what a university's mission and purpose are. Should UVic be a forum for the expression and debate of ideas, including controversial and unpopular ones? Or should UVic determine the "truth" on behalf of everyone, and then coddle young minds by ensuring they are "safe" from seeing or hearing serious challenges to established opinion and orthodoxy?

UVic claims to be acting simply as a private landowner and contractor. But UVic is not a private commercial entity. UVic is a taxpayer-funded public body, governed by B.C.'s University Act, with the public responsibility of teaching people to think, rather than seeking to silence speech a majority of students or administrators disagree with. UVic exercises compulsory power over students, who can potentially be expelled for disobeying a UVic decision that tramples on their right to peaceful expression on campus.

Freedom of expression is a basic right of the individual, and a fundamental Canadian value in our legal system, which precede and transcend the Charter. As the Supreme Court of Canada has noted, quoting John Stuart Mill: "...ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and...many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present."

The law should not allow UVic to become a lesser and distorted version of itself, by denying students the right to peacefully express unpopular opinions. It's time to return universities to their central mandate of educating robust, thinking minds.

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which is an intervener in the B.C. Court of Appeal in BC Civil Liberties Association v. University of Victoria.

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